Obama recess appointments unconstitutional

The case is likely to end up before the Supreme Court, and will likely on the definition of what the Constitution means when it says “recess.”

Last January Mr. Obama named union lawyer Richard Griffin and Labor Department official Sharon Block, both Democrats, and a Republican, NLRB lawyer Terence Flynn, to the labor board using his recess powers. He also named Richard Cordray to head the new Consumer Financial Protection Bureau, using those same powers.

Noel Canning, a bottling company, sued the NLRB, arguing that a rule issued by the new board was illegal since the recess appointments were unconstitutional. Senate Republicans, led by Minority Leader Mitch McConnell, joined in the suit.

The appeals court panel, which sits in Washington, D.C., was skeptical of Mr. Obama’s case during oral argument in early December, with Chief Judge David B. Sentelle and Judge Thomas B. Griffith peppering the administration lawyers with questions.

The Constitution gives the president the power to nominate judges and executive branch officials, but the Senate must vote to confirm them before they take office. Article II, Section 2 of the Constitution grants the president powers “to fill up all vacancies that may happen during the recess of the Senate.”

Those powers have produced centuries of give-and-take, with senators regularly slow-walking nominees and the White House looking for ways to get its nominees in place — including the recess appointment.

Mr. Obama, though, appeared to break new ground by acting at a time when the Senate was meeting every third day, specifically to deny him the chance to make appointments.

The problem is the word “recess” has several meanings in legislative-speak. It can mean a short break during the day, it can mean a break of days or weeks for a holiday, or it can mean the end of a yearly session.

The president argued that even though the Senate was convening every three days, the pro forma sessions didn’t allow any business, and nearly every senator was absent from the chamber, signaling that the Senate wasn’t able to perform its confirmation duties and should be considered essentially in recess.

His opponents had warned that if Mr. Obama’s stance prevailed, then presidents could make appointments when the Senate takes its midday recess for weekly party caucus lunches.

The judges on Friday ruled that the only clear bright line is when the Senate recesses at the end of the year.

“The dearth of intra-session appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments,” the judges wrote. “Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”

Victor K. Williams, an assistant professor at Catholic University School of Law who filed briefs arguing that the court should reject the case as a political question between Congress and the president, called the judges’ ruling “historically wrong.”

“This panel of the D.C. circuit has accomplished what Minority Leader Mitch McConnell failed to do. Minority Leader McConnell said that his No. 1 objective was defeating Barack Obama and Barack Obama’s attempt to govern. This D.C. circuit panel has been successful where McConnell failed. they have really, effectively challenges the president’s ability to govern,” Mr. Williams said.